The Supreme Court of Vermont Law Blog: An on-going conversation about the practice of law in Vermont, featuring summaries of Vermont Supreme Court decisions, a dollop of lampooning, legal analysis, and a charming aggregation of creative thought.

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Saturday, October 8, 2016

Undo

This is a case that got dismissed, and the dismissal was appealed by the plaintiff. My favorite part of this opinion is the footnote on page 1 that says the defendant joined the plaintiff in the appeal, meaning, they both were appealing the same thing. As my favorite movie character, Inigo Montoya, said, “I will sum up.”

Ms. Solomon and Ms. Guidry were a couple and were joined in a civil union in July of 2001. Unfortunately, the relationship came to an end sometime in or around 2014. They wanted to split up, which is a perfectly normal reaction to a relationship ending.

But. In the meantime, both Ms. Solomon and Ms. Guidry moved to North Carolina, which, isn’t exactly “progressive” or “nice to gay people” or “thinking with functional brains when it comes to things like going to the bathroom.” I’m sure there are some nice things about North Carolina, like beaches and barbecue, but we’re not here to talk about that.

The problem was that Ms. Solomon and Ms. Guidry couldn’t dissolve their civil union in North Carolina, because North Carolina doesn’t recognize civil unions. They’re not able to undo something they don’t even see as something that exists. It’s like in the old days when someone with a Mac would send a file to a PC user and the PC would refuse to open the Mac document. The PC would say, “What is this? this file isn’t even a thing. I am not opening this. I refuse to recognize that this is even a thing.” Or, like this.

Ms. Solomon and Ms. Guidry filed to have their Vermont civil union dissolved in Vermont, since only Vermont would be able to do that. Initially they filed in the wrong court in Vermont, but that got sorted out with no problem. Then the correct Vermont court said that actually the parties had to try to dissolve it in North Carolina first, and that if the North Carolina court wouldn’t recognize it, they’d have to appeal it there.

Team Solomon-Guidry appealed to SCOV, who reversed and said, “Please undo this civil union.”

SCOV writes a nice concise summary of the last 15 years going from Baker v. State with the beginning of civil unions through the present. To be concise: Vermont invented civil unions in 2001. Then in 2009, marriage became a “union of two people” regardless of the sex of the participants. For the people who got CU’d in the 8 years between, though, their unions did not automatically become marriages. People with civil unions could then get married. If they didn’t want to, they could maintain the status quo. If they wanted to dissolve the unions they could do that, too. There just couldn’t be any new civil unions created.

Then, in 2015, the Big Court decided a case called Obergefell v. Hodges and said, “Hey States, get out of your own way. Y’all have to recognize same-sex marriages from other states.” Some states were like, “Yeah, whatevs. We’ll follow your rules. We’ve got bigger problems, like not being able to balance our budgets and our crumbling infrastructures and creepy clowns terrorizing our streets and whatnot.” Other states, like North Carolina, got dragged kicking and screaming into following the Supreme Law Of The Land because the only things that are important in North Carolina are checking people’s birth certificates when they have to use the loo and whether the first round of the NCAA tournament will be in Coach K’s actual backyard or his figurative one. (Editor's note: the opinions expressed here are those of the author and not necessarily those of SCOV Law. David Ball is from NC and said editor is very fond of David Ball.)

The trial court judge said that Ms. Solomon would have to file in North Carolina, get denied there, and then file in Vermont. Otherwise, it would make it so that states would just keep refusing to undo things they find icky and would never solve the issue. In other words, they need to buck up and follow the darn law, just like everyone else. The problem here, though, was that this was a civil union, not a marriage, so probably North Carolina wouldn’t touch this.

Since there wasn’t technically a marriage, Obergefell doesn’t provide a requirement that North Carolina has to recognize the union. Unless Ms. Solomon and Ms. Guidry got their union dissolved here, there wouldn’t be a remedy for them. They’d have to stay in a civil union that apparently neither of them wanted. The only other way to undo it would be for one of them to move to Vermont to establish residency long enough for there to be jurisdiction, but this might not be in either of their long-term plans. In all respects, their civil union fit the requirements of the statute that would allow for it to be dissolved in Vermont.

The Vermont legislature came up with a way for nonresidents to dissolve civil unions here, recognizing that exactly this sort of problem would happen. People would come here, get CU’d, and then go back to wherever they lived. But if they wanted to undo the CU, they either couldn’t do it or they’d have to do it here. The legislature made a statute with a set of criteria for out-of-staters with Vermont civil unions to be able to dissolve the Vermont union in Vermont.

SCOV reverses and gives Ms. Solomon and Ms. Guidry the go-ahead to get their union dissolved here.